Loosening The Reins? NLRB Advice Memo Suggests Less Restrictive Approach Towards Employer Confidentiality Policies

A recent NLRB Division of Advice memorandum signals more lenient treatment of employer confidentiality policies moving forward. The Division of Advice provides guidance to the National Labor Relations Board regional offices on unique or complex issues. Although advice memorandums are non-binding and non-precedential, they are generally considered authoritative guidance and may indicate how the Board will rule in future cases. 

 The memo released on March 30, 2026 concluded that an employee’s social media post including a password‑protected link to an internal meeting where sensitive business information was discussed lost the protection of the Act, and that the employer lawfully terminated the employee for violating its confidentiality policy. 

Although the employee’s social media post related to terms and conditions of employment, the Division of Advice concluded that the inclusion of the password‑protected link to confidential business discussions negated any Section 7 protection in the communication. The memo stated that the employer’s interest in protecting its confidential business information outweighed the employee’s interest in including the link in the social media post, noting the employee had other means to engage coworkers without sharing the link.

Further, the Division of Advice concluded the employer’s confidentiality policy was lawful under the Board’s more restrictive framework from Stericycle, Inc., 372 NLRB No. 113 (2023), which considers policies that could be reasonably interpreted to chill protected activity as presumptively unlawful and places the burden on the employer to justify the policy. 

The policy at issue in the memo classified anything an employee learned at work as confidential, but gave examples such as financial, marketing, and customer information. The Division of Advice found that reasonable employees could not interpret the policy to prohibit discussing terms and conditions of employment when viewed in context of the examples provided. 

The memo applies a less restrictive interpretation of employer confidentiality policies compared to prior Board decisions applying Stericycle, signaling a potential shift in the manner in which the Board will review employer policies moving forward. The memo also reaffirms the limits of employees’ Section 7 activity in light of countervailing employer confidentiality interests. Since the Board has not issued many recent decisions due to its previous lack of a quorum, the Division of Advice memo sheds some light on the current administration’s priorities and may signal what is to come from the Board. 

In the meantime, employers can learn from the Division of Advice’s findings by providing examples of prohibited conduct to make clear that their policies do not apply to protected activity. 

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